[Federal Register Volume 66, Number 167 (Tuesday, August 28, 2001)]
[Proposed Rules]
[Pages 45253-45256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-21707]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[AL-T5-2001-01; FRL-7045-4]


Clean Air Act Proposed Full Approval of Operating Permit 
Programs; Alabama, City of Huntsville, and Jefferson County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed full approval.

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SUMMARY: EPA proposes to fully approve the operating permit programs of 
the Alabama Department of Environmental Management, the City of 
Huntsville's Division of Natural Resources, and the Jefferson County 
Department of Health. These programs were submitted in response to the 
directive in the 1990 Clean Air Act (CAA) Amendments that permitting 
authorities develop, and submit to EPA, programs for issuing operating 
permits to all major stationary sources and to certain other sources 
within the permitting authorities' jurisdiction. On November 15, 1995, 
EPA granted interim approval to the Alabama, Huntsville, and Jefferson 
County title V operating permit programs (60 FR 57346). These agencies 
have revised their programs to satisfy the conditions of the interim 
approval and this action proposes approval of those revisions and other 
program changes made since the interim approval was granted.

DATES: Comments on the program revisions discussed in this proposed 
action must be received in writing by EPA on or before September 27, 
2001.

ADDRESSES: Written comments on the program revisions discussed in this 
action should be addressed to Ms. Kim Pierce, Regional Title V Program 
Manager, Air & Radiation Technology Branch, EPA, 61 Forsyth Street, SW, 
Atlanta, Georgia 30303-8960. Copies of the Alabama, Huntsville, and 
Jefferson County submittals and other supporting documentation used in 
developing the proposed full approval are available for inspection 
during normal business hours at EPA, Air & Radiation Technology Branch, 
61 Forsyth Street, SW, Atlanta, Georgia 30303-8960.

FOR FURTHER INFORMATION CONTACT: Kim Pierce, EPA Region 4, at (404) 
562-9124 or [email protected]/.

SUPPLEMENTARY INFORMATION: This section provides additional information 
by addressing the following questions:

    What is the operating permit program?
    What is being addressed in this document?
    What are the program changes that EPA proposes to approve?
    What is involved in this proposed action?

What Is the Operating Permit Program?

    Title V of the CAA Amendments of 1990 required all state and local 
permitting authorities to develop operating permit programs that met 
certain federal criteria. In implementing the title V operating permit 
programs, the permitting authorities require certain sources of air 
pollution to obtain permits that contain all applicable requirements 
under the CAA. The focus of the operating permit program is to improve 
enforcement by issuing each source a permit that consolidates all of 
the applicable CAA requirements into a federally enforceable document. 
By consolidating all of the applicable requirements for a facility, the 
source, the public, and the permitting authorities can more easily 
determine what CAA requirements apply and how compliance with those 
requirements is determined.
    Sources required to obtain an operating permit under the title V 
program include: ``major'' sources of air pollution and certain other 
sources specified in the CAA or in EPA's implementing regulations. For 
example, all sources regulated under the acid rain program, regardless 
of size, must obtain operating permits. Examples of major sources 
include those that have the potential to emit 100 tons per year or more 
of volatile organic compounds (VOCs), carbon monoxide, lead, sulfur 
dioxide, nitrogen oxides ( NOX), or particulate matter 
(PM10); those that emit 10 tons per year of any single 
hazardous air pollutant (specifically listed under the CAA); or those 
that emit 25 tons per year or more of a combination of hazardous air 
pollutants (HAPs). In areas that are not meeting the National Ambient 
Air Quality Standards for ozone, carbon monoxide, or particulate 
matter, major sources are defined by the gravity of the nonattainment 
classification. For example, in ozone nonattainment areas classified as 
``serious,'' major sources include those with the potential of emitting 
50 tons per year or more of VOCs or NOX.

[[Page 45254]]

What Is Being Addressed in This Document?

    Where a title V operating permit program substantially, but not 
fully, met the criteria outlined in the implementing regulations 
codified at 40 Code of Federal Regulations (CFR) part 70, EPA granted 
interim approval contingent on the state revising its program to 
correct the deficiencies. Because the Alabama, Huntsville, and 
Jefferson County programs substantially, but not fully, met the 
requirements of part 70, EPA granted interim approval in a rulemaking 
(60 FR 57346) published on November 15, 1995. The interim approval 
notice described the conditions that had to be met in order for the 
Alabama, Huntsville, and Jefferson County programs to receive full 
approval. Alabama submitted five revisions to its interimly approved 
operating permit program; these revisions were dated July 19, 1996, 
April 9, 1997, August 4, 1999, January 10, 2000, and May 11, 2001. 
Huntsville, which adopts the State's rules, submitted five revisions to 
its interimly approved program; these revisions were dated March 21, 
1997, July 21, 1999, December 4, 2000, February 22, 2001, and April 9, 
2001. Jefferson County, which also adopts the State's rules, submitted 
five revisions to its interimly approved program; these revisions were 
dated February 5, 1998, September 20, 1999, August 8, 2000, March 30, 
2001, and May 18, 2001. This document describes changes that have been 
made to the Alabama, Huntsville, and Jefferson County operating permit 
programs since interim approval was granted.

What Are the Program Changes That EPA Proposes To Approve?

    As stipulated in the interim approval notice, full approval of the 
Alabama, Huntsville, and Jefferson County title V operating permit 
programs was made contingent upon the following rule changes:
    (1) Amend Alabama's statute to provide for adequate criminal fines 
consistent with 40 CFR 70.11(a)(3)(ii) and (iii). The State amended 
Section 22-28-22, Code of Alabama 1975, to prescribe adequate criminal 
fines and the amendment was signed into law on May 17, 1996. The 
amendment was submitted to EPA on July 19, 1996, and Alabama submitted 
a supplemental Attorney General's Statement certifying that State law 
provides enforcement authority consistent with 40 CFR 70.11 to EPA on 
May 11, 2001. Huntsville incorporated the criminal penalties specified 
by Alabama Act 96-516 into local law and submitted the amendment to EPA 
on March 21, 1997. On April 9, 2001, Huntsville submitted a legal 
opinion by the City Attorney certifying that its criminal penalty 
authority was consistent with 40 CFR 70.11. On May 18, 2001, Jefferson 
County submitted a Local Counsel's Amended Opinion certifying that 
State law allows the County to assess criminal penalties consistent 
with 40 CFR 70.11. EPA has determined that the Alabama, Huntsville, and 
Jefferson County submittals adequately address the enforcement 
authority deficiency.
    (2) Eliminate Alabama's Rule 335-3-16-.04(9)(b) (and the 
corresponding local rules) which exempted certain permit applications 
from the completeness certification requirement in 40 CFR 70.5(a)(2). 
Alabama deleted the regulation and submitted the state-effective rule 
change to EPA on May 11, 2001. Huntsville deleted its corresponding 
rule, Paragraph 3.9.4(b), and submitted the local-effective rule change 
to EPA on April 9, 2001. Jefferson County deleted its corresponding 
rule, Paragraph 18.4.9(b), and submitted the local-effective rule 
change to EPA on May 18, 2001.
    (3) Revise Rule 335-3-16-.01(o) (and the corresponding local rules) 
to require EPA review and approval of any revisions to the State's 
insignificant activity list. Alabama revised the regulation accordingly 
and submitted the state-effective rule change to EPA on May 11, 2001. 
Huntsville made identical revisions to its corresponding rule, 
Paragraph 3.1.1(q), and submitted the local-effective rule change to 
EPA on April 9, 2001. Jefferson County revised its corresponding rule, 
Paragraph 18.1.1(o), accordingly and submitted the local-effective rule 
change to EPA on May 18, 2001.
    (4) Revise the Alabama rules (and the corresponding local rules) to 
ensure that insignificant emissions units with applicable requirements 
are not exempted from permitting or major source applicability 
determinations even if listed on the approved list of insignificant 
activities. Alabama responded by revising the definition of 
``Insignificant Activity'' in Rule 335-3-16-.01(o) to ensure that 
activities subject to applicable requirements are not classified as 
insignificant. The State also revised Rule 335-3-16-.04(8)(c)9.(i) to 
remove the exemption from permitting requirements for insignificant 
activities. The state-effective rule changes were submitted to EPA on 
May 11, 2001. Huntsville made identical revisions to its corresponding 
rules, Paragraph 3.1.1(q) and Subparagraph 3.9.3(c)(9)(i), and 
submitted the local-effective rule changes to EPA on April 9, 2001. 
Jefferson County also revised its corresponding rules, Paragraph 
18.1.1(o) and Subparagraph 18.4.8(c)(9)(i), accordingly and submitted 
the local-effective rule changes to EPA on May 18, 2001.
    (5) Revise the Alabama rules (and the corresponding local rules) to 
provide for permit terms and conditions that allow the trading of 
emissions increases and decreases in accordance with 40 CFR 
70.4(b)(12)(iii), 70.5(c)(7), and 70.6(a)(10). The State responded by 
adding Rule 335-3-16-.05(m), which provides for permit terms and 
conditions authorizing the trading of emissions increases and decreases 
in a permitted facility, and submitted the state-effective rule change 
to EPA on May 11, 2001. Huntsville incorporated the State's rule by 
adding Paragraph 3.9.5(u) and submitted the local-effective rule change 
to EPA on April 9, 2001. Jefferson County incorporated the State's rule 
in its new Section 18.5.14 and submitted the local-effective rule 
change to EPA on May 18, 2001.
    (6) Revise Rule 335-3-16-.13(1)(a)7. (and the corresponding local 
rules) to specifically list the types of changes that are eligible for 
processing as administrative permit amendments or remove the provision 
allowing for Director's discretion when determining the types of 
changes that are eligible for processing as administrative permit 
amendments. Alabama responded by revising Rule 335-3-16-.13(1)(a)7. to 
require EPA approval of the types of permit changes that are eligible 
for processing as administrative amendments, and the state-effective 
rule change was submitted to EPA on May 11, 2001. Huntsville 
incorporated the State's rule change in its corresponding rule, 
Subparagraph 3.9.11(a)(1)(vii), and submitted the local-effective rule 
change to EPA on April 9, 2001. Jefferson County incorporated the 
State's rule change in its corresponding rule, Subparagraph 
18.13.1(a)(7), and submitted the local-effective rule change to EPA on 
May 18, 2001.
    (7) Correct the citation in Rule 335-3-16-.13(1)(a)6. (and the 
corresponding local rules) in order to provide for EPA and affected 
states review of administrative permit amendments, as specified in 40 
CFR 70.7(d)(1)(v). Alabama responded by correcting the citation to 
reference Rule 335-3-16-.15 ``Permit Review by EPA, Affected States and 
the Public'' and submitted the state-effective rule change to EPA on 
January 10, 2000. Huntsville corrected the citation in its 
corresponding rule, Section 3.9.11, to reference Section 3.9.13 
``Permit Review by EPA, Affected

[[Page 45255]]

States and the Public'' and submitted the local-effective rule change 
to EPA on April 9, 2001. Jefferson County corrected the citation in its 
corresponding rule, Subparagraph 18.13.1(a)(6), to reference Part 18.15 
``Permit Review by EPA, Affected States and Public'' and submitted the 
local-effective rule change to EPA on May 18, 2001.
    (8) Revise Rule 335-3-16-.11(1) (and the corresponding local rules) 
to address EPA's concerns regarding the Director's ability to exempt 
emissions exceedances on a case-by-case basis. Alabama responded by 
adding the following language to Rule 335-3-16-.11(1): ``For emission 
limits established by federal rules (e.g., NSPS, NESHAP, and MACT), 
exemptions may be granted only where provisions for such exemptions are 
contained in the applicable rule or its general provisions.'' The 
state-effective rule change was submitted to EPA on January 10, 2000. 
Huntsville incorporated the State's language in its corresponding rule, 
Paragraph 3.3.8(a), and submitted the local-effective rule change to 
EPA on April 9, 2001. Jefferson County incorporated the State's 
language in its corresponding rule, Paragraph 18.11.1, and submitted 
the local-effective rule change to EPA on August 8, 2000.
    (9) Revise Rule 335-3-16-.11(2)(c) (and the corresponding local 
rules) to allow for EPA and citizen participation in the emergency 
determination process. In response, Alabama removed language in Rule 
335-3-16-.11(2)(c) that allowed only the Director to be the determiner 
of when an emergency has occurred and submitted the state-effective 
rule change to EPA on January 10, 2000. Huntsville incorporated the 
State's rule change in its corresponding rule, Subparagraph 
3.3.8(b)(3), and submitted the local-effective rule change to EPA on 
April 9, 2001. Jefferson County incorporated the State's rule change in 
its corresponding rule, Subparagraph 18.11.2(c), and submitted the 
local-effective rule change to EPA on May 18, 2001.
    (10) Revise Rule 335-3-16-.11 (and the corresponding local rules) 
to clarify that an emergency constitutes an affirmative defense in 
accordance with 40 CFR 70.6(g)(2). Alabama responded by adding Rule 
335-3-16-.11(2)(e), which states that an emergency constitutes an 
affirmative defense, and submitted the state-effective rule change to 
EPA on May 11, 2001. Huntsville incorporated the State's rule by adding 
Subparagraph 3.3.8(b)(5) and submitted the local-effective rule change 
to EPA on April 9, 2001. Jefferson County incorporated the State's rule 
by adding Paragraph 18.11.2(e) and submitted the local-effective rule 
change to EPA on August 8, 2000.
    The other programmatic changes made by Alabama, Huntsville, and 
Jefferson County since interim approval was granted involve the 
mechanisms for determining annual title V fee amounts. The State's 
title V operating permit program received interim approval based on use 
of the ``presumptive minimum'' fee amount described in 40 CFR 
70.9(b)(2)(i). However, Alabama's use of this fee amount resulted in 
the collection of more revenue than was needed to fund the program. On 
April 9, 1997, Alabama notified EPA of a revision to Rule 335-1-7-.04 
that reduced the fee amounts assessed in 1995 through 1999 to offset 
the excess fees collected in 1991 through 1993. The State has continued 
to adjust its fees annually so that total revenue balances projected 
costs. Alabama submitted a fee program update on August 4, 1999, 
demonstrating that its title V program was being adequately funded.
    Huntsville's title V program received interim approval based on use 
of the part 70 ``presumptive minimum'' fee amount and the assessment of 
permit application fees. However, the Alabama Legislature passed 
legislation during its 2000 session prohibiting the local agencies from 
charging higher emission fees or permit application fees than those 
charged by the State. On December 4, 2000, Huntsville submitted local-
effective rule changes to Part 3.6 ``Permit Application Fees'' and Part 
3.7 ``Major Source Operating Permit Annual Emissions Fees'' that gave 
precedence to the fee structure established under State law. Huntsville 
submitted a fee program update on July 21, 1999, demonstrating that its 
title V program was being adequately funded. As a result of the fee 
restriction imposed in 2000, Huntsville submitted another fee program 
update on February 22, 2001, demonstrating that its title V program 
continues to be adequately funded.
    Jefferson County's title V program also received interim approval 
based on use of the part 70 ``presumptive minimum'' fee amount, but 
collection of this amount resulted in revenue surpluses in FY96 and 
FY97. On February 5, 1998, the County submitted a financial report 
showing the surpluses and informed EPA that it had reduced its fees. 
Jefferson County submitted a formal fee program update on September 20, 
1999, demonstrating that its title V program was being adequately 
funded. And, in response to EPA's concerns about the potential impact 
of the statutory fee cap imposed on local agencies by the Alabama 
Legislature, Jefferson County submitted another fee program update on 
March 30, 2001, indicating that its title V program was still 
adequately funded.

What is Involved in This Proposed Action?

    Since Alabama, Huntsville, and Jefferson County have fulfilled the 
conditions of the interim approval granted on November 15, 1995, EPA 
proposes full approval of their title V operating permit programs and 
the fee program changes described above. The regulations in Alabama's 
federally approved title V program include Chapter 335-1-7 ``Air 
Division Operating Permit Fees'' and Chapter 335-1-7 ``Major Source 
Operating Permits.'' The regulations in Huntsville's federally approved 
title V program include Parts 3.1 ``General Provisions,'' 3.6 ``Permit 
Application Fees,'' 3.7 ``Major Source Operating Permit Annual 
Emissions Fees,'' and 3.9 ``Major Source Operating Permits.'' The 
regulations in Jefferson County's federally approved title V program 
include Chapter 16 ``Operating Permit Fees'' and Chapter 18 ``Operating 
Permit Regulations for Major Sources.''

Administrative Requirements

A. Request for Public Comments

    EPA requests comments on the program revisions discussed in this 
proposed action. Copies of the Alabama, Huntsville, and Jefferson 
County submittals and other supporting documentation used in developing 
the proposed full approval are contained in the EPA docket file 
numbered AL-2001-01 that is maintained at the EPA Region 4 office. The 
docket is an organized and complete file of all the information 
submitted to, or otherwise considered by, EPA in the development of 
this proposed full approval. The primary purposes of the docket are: 
(1) To allow interested parties a means to identify and locate 
documents so that they can effectively participate in the approval 
process, and (2) to serve as the record in case of judicial review. The 
docket files are available for public inspection at the location listed 
under the ADDRESSES section of this document. EPA will consider any 
comments received in writing by September 27, 2001.

B. Executive Order 12866

    The Office of Management and Budget has exempted this regulatory 
action from Executive Order 12866, entitled ``Regulatory Planning and 
Review.''

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety

[[Page 45256]]

Risks (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it is not 
an economically significant regulatory action as defined in Executive 
Order 12866, and it does not involve decisions intended to mitigate 
environmental health or safety risks.

D. Executive Order 13132

    This rule does not have Federalism implications because it will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132, ``Federalism'' (64 FR 43255, 
August 10, 1999). This rule merely approves existing requirements under 
state law, and does not alter the relationship or the distribution of 
power and responsibilities between the state and the federal government 
established in the CAA.

E. Executive Order 13175

    This rule does not have tribal implications because it will not 
have a substantial direct effect on one or more Indian tribes, on the 
relationship between the federal government and Indian tribes, or on 
the distribution of power and responsibilities between the federal 
government and Indian tribes, as specified by Executive Order 13175, 
``Consultation and Coordination with Indian Tribal Governments'' (65 FR 
67249, November 9, 2000).

F. Executive Order 13211

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a 
significantly regulatory action under Executive Order 12866.

G. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to 
conduct a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements unless the agency certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small not-for-profit enterprises, and small governmental jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because operating permit program approvals 
under section 502 of the CAA do not create any new requirements but 
simply approve requirements that the state is already imposing. 
Therefore, because this approval does not create any new requirements, 
I certify that this action will not have a significant economic impact 
on a substantial number of small entities.

H. Unfunded Mandates Reform Act

    Under sections 202 of the Unfunded Mandates Reform Act of 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a federal mandate that may result in estimated 
costs to state, local, or tribal governments in the aggregate, or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action proposed does not 
include a federal mandate that may result in estimated costs of $100 
million or more to either state, local, or tribal governments in the 
aggregate, or to the private sector. This federal action approves pre-
existing requirements under state or local law, and imposes no new 
requirements. Accordingly, no additional costs to state, local, or 
tribal governments, or to the private sector, result from this action.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    In reviewing operating permit programs, EPA's role is to approve 
state choices, provided that they meet the criteria of the CAA and 
EPA's regulations codified at 40 CFR part 70. In this context, in the 
absence of a prior existing requirement for the state to use VCS, EPA 
has no authority to disapprove an operating permit program for failure 
to use VCS. It would thus be inconsistent with applicable law for EPA, 
when it reviews an operating permit program, to use VCS in place of an 
operating permit program that otherwise satisfies the provisions of the 
CAA. Thus, the requirements of section 12(d) of NTTAA do not apply.

J. Paperwork Reduction Act

    This action will not impose any collection of information subject 
to the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq., other than those previously approved and assigned OMB control 
number 2060-0243. For additional information concerning these 
requirements, see 40 CFR part 70. An agency may not conduct or sponsor, 
and a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

List of Subjects in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: August 17, 2001.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 01-21707 Filed 8-27-01; 8:45 am]
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